Ageism Part 3: What HR Needs to Know

Age was not originally part of the protected catagories as defined by the Civil Rights Act of 1964. It was added with the 1967 passage of the Age Discrimination in Employment Act. And unlike the CRA where coverage starts at 15 employees, its coverage does not start until 20 employees. (This lack of consistency drives HR people nuts.) The law protects workers age 40 or over. It does not provide any protection to workers under 40. It allows employers to favor older workers, even if the "younger" workers are over 40 years of age. This was determined by the Supreme Court in the General Dynamic Land System v. Cline case.

The ADEA prohibits discrimination in all usual areas of employment, but also includes areas not generally considered, such as training and apprenticeship programs and time-off. Harassment based upon age, such as "old" jokes, "old" cartoons, "old" slurs, is also prohibited. So watch the "gray beard" or "old dog" remarks.

There are some areas where age can be a factor. These include:

• State and local governments may institute a mandatory retirement at age of 55 for firefighters and law enforcement officers.
• Employers may require a high-ranking employee to retire if:
• the employee is at least 65
• the employee has worked for at least the previous 2 years as a bona fide executive or is in a high policy making position, and
• the employee is entitled to an immediate, nonforfeitable annual retirement of at least $44,000 from the employer.
• In some cases an employer may reduce benefits paid to older workers if done so in accordance with a bona fide employee benefit plan.

And that leads us to the other law that protects older workers, The Older Worker Benefit Protection Act (OWBPA). This was passed in 1990 and says:

• Employers must offer older workers benefits that are equal to or, in some cases, cost the employer as much as, the benefits offered to younger workers. The rules for determining whether they are equal depend on the type of benefit offered.
• A waiver of the right to sue for age discrimination is valid is only if it meets certain standards to ensure the waiver is knowing and voluntary.

There are alot of exceptions to the rules on pensions and other benefit plans, so each HR professional needs to be aware of these, as there are too many for this post.

I do want to cover the waiver issues however, because in  today's world more HR managers are dealing with them. Waivers have to be knowing and voluntary and the rules for this are:

1. It is part of a written agreement between the employee and employer.
2. It is written in language that is understandable to the employee or the average of the group.
3. Specifically refers to the worker's rights under the ADEA.
4. Does not require the employee to waive any rights or claims that may arise after the agreement is signed.
5. Gives the employee something of value, over and above to what they may already be entitled. This is typically a severance.
6. The employee must be be advised, in writing, to consult an attorney before signing the agreement.
7. Must give the employee at least 21 days to consider the agreement, or 45 days in a group termination.
8. Give the employee at least 7 days after signing to revoke the agreement.
9. If the waiver is in connection with a group termination the employer must also provide the information on the demographics of the group(s) selected for the program.

So there are the rules. Here are a few comments.

• By 2010 it is predicted that half the workforce of the US will be over the age of 40.
• You can tell this law was passed by a group of people who used to think 30 was old. If we were doing this today 40 would not be OLD!
• As someone well past 40, I still rankle at the idea that someone thinks it takes me an extra 21 days to make a decision and that I have to have help to do it.
• Age discrimination is one of the fastest growing areas of EEOC suits, so it is going to get worse before it gets better. 
• The law allows disparate impact lawsuits, so make sure you are checking the impact of your layoffs. They may end up being more expensive than you think.

Finally, when I reached my 40th birthday I celebrated big time because I had finally reached a protected catagory. LOL

Age Discrimination: Even AARP Is Not Immune

AARP, the national association that advocates for older Americans, is being sued by an ex-employee, who claims she was discriminated against because of her age, so reports the New York Times. The woman, Bonita Brady, claims she lost her job in a reorganization and then was passed over 9 times for other positions, despite the fact that she had excellent performance reviews in the past. AARP has not responded to the claim.

There are several things that may be going in this case. But first, here is a primer on age discrimination. Age is covered by the Age Discrimination in Employment Act of 1967 and is administered by the EEOC. It has been amended by the Older Workers Benefit Protection Act and the Equal Employment Act of 1991. Basically the law protects workers over the age of 40 from discrimination in all aspects of employment. Employers have to make decisions about employees or candidates based upon factors other than age. If an employee is being terminated or laid off they can be asked to sign a letter waiving their rights to sue if: 1) they are given something of value in return (read severance here), 2) they are given 21 days in which to make the decision (45 days if it is a group layoff), 3) they are informed they have the right to consult an attorney, and 4) they have 7 days in which to rescind the agreement.

There are a couple of Supreme court cases that have major impact on age discrimination. The first was General Dynamics Land Systems, Inc. v. Cline in 2004 said that the law was meant to protect workers over the age of 40 from discrimination in favor of workers under the age of 40, not from workers over the age of 40 but of a different age. The case dealt with benefit favoritism for workers over 50 but not for workers ages 40-49. A couple more recent Supreme Court decisions allowed older workers to file disparate impact cases. As an example, any skills test requiring computer skills might have a disparate impact on older workers.

So in the AARP case we started with a few things may be going on. First, Ms. Brady may have been passed over several times, but if she was denied because AARP hired someone who was also over the age of 40 she may not have a case. She may not have had the skills they need to fill the position, despite the good performance reviews. Secondly, perhaps the decision-making here was based upon "nice" performance reviews rather than "accurate" performance reviews. It may be in reality that her boss(es) may have been wishy-washy in their evaluation of her performance and she was not really as good as they put down on paper. And then when it came down to having to make a decision on her to fill a spot they really did not think she was capable of doing it. So they passed her over. She got upset and filed a lawsuit claiming discrimination. Whether this is the case or not, it is a good reminder to be accurate in performance evaluation, because if you tell people they are good, when indeed they are not, when you let them go they are going to attribute it to discrimination in some form. After all, you have been telling them for years they are good employees.

Whatever the reason, pay attention to this one to develop. They may settle with her. She is only asking for $25,000 and the bad publicity may cost AARP more than that.